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In the matter of Dixon v. 105 West 75th Street LLC, et al., Robert H. Berman, of Kucker Marino Winiarsky & Bittens, LLP, successfully defeated a tenant’s claim to a declaratory judgment, injunctive relief, lease reformation, rent overcharge, fraud and attorney fees.

In Dixon, the plaintiff alleged that his apartment was still subject to the Rent Stabilization Law due to a failure to properly deregulate the apartment from rent stabilization regulations coverage.

Justice Mendez, in New York Supreme Court, dismissed the plaintiff’s claim based on documentary evidence presented by the landlord, which established that the apartment was properly deregulated. The documentary evidence established that the apartment had been vacant prior to the plaintiff’s occupancy, and the landlord had renovated the apartment and created a duplex by erecting a rooftop penthouse to the building. This created a new duplex apartment which did not previously exist, entitling the landlord to a “first rent”. As the “first rent” exceeded over the statutory limit, the apartment was deregulated. The Certificate of Occupancy prior to the renovation showed that there had not been any roof-top livable space; with the new Certificate of Occupancy showed the existence of the new rooftop penthouse.

The plaintiff subsequently filed a motion for leave to renew and reargue, for a stay of the action, to amend the pleadings, and for removal of a Civil Court summary proceeding and joint trial. Judge Mendez denied this motion stating, among other reasons, that the rooftop penthouse addition created a new unit which obliterated the existing apartment and therefore rendered the rental history meaningless.

The significance of Robert H. Berman’s successful defeat of the plaintiff’s motion solidifies the concept that a “first rent” can have on deregulated rent-regulated apartments.